A close perusal of Section 28 would show that though as per this
Section the proceedings under Sec.12, 18 to 23 and offences under Sec. 31 are
governed by the Code of Criminal Procedure, 1973, that is not an inscrutable
rule inasmuch as Sec.28(1) is having a saving clause and also subject to sub-
section(2).
When we analyse the limitations of Section 28(1) with reference
to the civil nature of the remedies provided under Sec.18 to 22 and saving
provisions under Sec.13 and 23, we can understand that for conducting
enquiry, the Court need not insist for personal attendance of the parties for
each adjournment like in criminal cases.
It is because, Sec.13 lays down that
the Magistrate shall issue a notice of the date of hearing fixed under Sec.12 to
the Protection Officer for serving on the respondent. So for securing the
appearance of respondent, at the first instance, the Magistrate need not, nay
shall not issue warrant.
Even if the respondents failed to turn up after
receiving notice and file their counter affidavit if any, the Magistrate need
not take coercive steps for securing their presence and on the other hand he can
treat them as Non-contesting respondents and pass an exparte order by
virtue of the power conferred on him under Sec.23 of the D.V.Act.
So during
the enquiry under Sec.12 and till an order is passed under Sec.18 to 23, the
Magistrate need not insist the presence of parties for each adjournment and
take coercive steps due to their absence.
It is only under exceptional
circumstances, if the Magistrate feels required, he may issue warrants for
securing the presence of the concerned party.
Such a judicial flexibility to
lay down own procedure is conferred on the Magistrate under Sec.28(2) of the
D.V. Act.
By following this procedure, learned Magistrate can obviate the
presence of the respondents, some of whom in most of the cases are
unnecessarily roped in, throughout the enquiry.
i) Since the remedies under D.V Act are civil remedies, the Magistrate in
view of his powers under Section 28(2) of D.V Act shall issue notice to the
parties for their first appearance and shall not insist for the attendance of
the parties for every hearing and in case of non-appearance of the parties despite
receiving notices, can conduct enquiry and pass exparte order with the
material available. It is only in the exceptional cases where the Magistrate
feels that the circumstance require that he can insist the presence of the
parties even by adopting coercive measures.
ii) In view of the remedies which are in civil nature and enquiry is not a
trial of criminal case, the quash petitions under Sec.482 Cr.P.C on the plea
that the petitioners are unnecessarily arrayed as parties are not maintainable.
It is only in exceptional cases like without there existing any domestic
relationship as laid under Section 2(f) of the D.V. Act between the parties, the
petitioner filed D.V. case against them or a competent Court has already
acquitted them of the allegations which are identical to the ones leveled in the
Domestic Violence Case, the respondents can seek for quashment of the
proceedings since continuation of the proceedings in such instances certainly
amounts to abuse of process of Court. - 2015 A.P. MSKLAWREPORTS( Telegana)
